from the not-a-good-thing dept

We wrote last week about an appeals court's technologically illiterate ruling that WiFi isn't a radio communication, and therefore picking up unencrypted WiFi data, even though it's broadcast for anyone to access, could be a violation of wiretapping laws. This seemed ridiculous for a variety of reasons, including the fact that part of the reasoning is that radio is supposedly mostly "auditory" (even though it's not).

If you're a security researcher in the Ninth Circuit (which covers most of the West Coast) who wants to capture unencrypted Wi-Fi packets as part of your research, you better call a lawyer first (and we can help you with that). The Wiretap Act imposes both civil and serious criminal penalties for violations and there is a real risk that researchers who intentionally capture payload data transmitted over unencrypted Wi-Fi—even if they don't read the actual communications —may be found in violation of the law. Given the concerns about over-criminalization and overcharging, prosecutors now have another felony charge in their arsenal.

There's a fairly big risk here that this interpretation of the law is going to create tremendous chilling effects on research.

Of course, there is a flip side. In theory, this might also mean that police can't scoop up WiFi signals either:

On the other hand, the decision also provides a strong argument that the feds and other law enforcement agencies that want to spy on data transmitted over unencrypted Wi-Fi will need to get a wiretap order to do so. We've seen the government use a device called a "moocherhunter" without a search warrant to read Wi-Fi signals to figure out who's connecting to a particular wireless router. This decision suggests that to the extent the government uses a device like this (or even a "stingray" to the extent it can capture Wi-Fi signals) to capture payload data —even if just to determine a person's location—they'll need a wiretap order to do so. That's good news since wiretap orders are harder to get than a search warrant.

Still we've seen courts give much greater leverage to law enforcement scooping up communications, so this benefit might not actually be real. The risk and the chilling effects to security researchers, however, is very real. Having seen how often security researchers have been threatened and/or arrested for their research, giving law enforcement another bogus thing to use against them is a huge problem.